Saturday, February 20, 2016

I met Justice Scalia at the
Supreme Court, on a night in 1988 when the Court was holding a mini-premier of
a PBS documentary called, “This Honorable Court.” My mom was on the guest list because
she’d been a state chairperson for the Bicentennial of the U.S. Constitution
Commission. I lived and worked in D.C. at the time, and she got me in.

We were standing in the Great
Hall, the “lobby” of the Supreme Court, and I had made my way to a place where
I could see what was going on. Suddenly, a man sidled up next to me – smoking –
and relentlessly cracking jokes about virtually everything being said during
the ceremony. I saw who it was, and so I quickly gave up any hope of either shushing
him or telling him not to smoke. In fact, I liked his jokes, and he must have known
that I liked them, because he kept telling them for about 15 solid minutes. I
learned later that this sort of interaction was the norm for Antonin Scalia,
who lived life in the moment, and who cracked jokes like nobody else.

I met William Brennan and William Rehnquist that
night, too, but I’ll remember Antonin Scalia the most for trying to show me
that Supreme Court Justices are just like everyone else. Except for the fact
that they aren’t. In fact, the biggest joke of all would be to think that
Justice Scalia was like any ordinary person. He wasn’t. He was huge. And he
will definitely be missed.

Saturday, February 13, 2016

Yet another blog from the bail
insurance industry, and yet another monstrously wrong statement likely to turn
the criminal justice system against bail agents everywhere. It’s a big one; in
fact, the insurance company blog covers what it calls the “one fact” that we bail
reformers don’t want anyone to know about. It concerns the idea that there are
poor people in jail who can’t afford the financial conditions of their bonds.
In the past, the insurance lobbyists have called this a myth, making me believe
that those lobbyists likely spend all of their time in their offices (or their
banks) and never inside an actual jail.

The truth – which is quite
the opposite of what the bail insurance lobbyists claim – is that we have a ton of
poor people in jail who can’t afford to bond out. Starting with federal government
statistics, which found that most pretrial inmates are facing unattainable
financial conditions, to work done by the New York Criminal Justice Agency
finding the same thing, to every study of jail populations since, we see what
mere logic should suffice to demonstrate: If you force people to pay money to
get out of jail, some percentage of those people simply won’t get out.

In New Jersey, Luminosity showed
that 5,000 people, or 38.5% of the entire pretrial jail population, were unable
to bond out due to lack of money – and 800 of those 5,000 defendants couldn’t
get out of jail for the lack of only $500 or less. In Connecticut recently, the
Under Secretary of Criminal Justice said, “I counted those who are in jail
right now . . . on misdemeanor charges with no charges of violence or being
dangerous [and] there are 299 sitting in jail on misdemeanors who can’t post
bond. There are also 550 sitting in jail on bonds of less than $20,000 on
charges that are not that serious. We see people sitting in our jail for weeks.”
Heck, every single lawsuit you have been reading about lately in the news is
being filed on behalf of a poor person languishing in jail due to money representing
a class of defendants languishing in
jail due to money. This is no myth.

In my county, our medieval prosecutor
(who as an elected official, by the way, was quite cozy with bail insurance
lobbyists from around the country) said the same thing. When everyone else said
that he was crazy, he actually explained that he felt most defendants who are “held
on bail” are there because they choose to be – they just don’t want out of jail.
As a researcher, I decided to look into that claim, and so for three months I looked
at every single defendant 48 hours after bail setting, sifted out the ones who
were also sentenced or would otherwise be held anyway, and then went cell to
cell to literally ask each defendant why he or she was still there. The
overwhelming response of virtually all defendants was that they, their friends,
and their families couldn’t afford the money.

And this problem is worse
than it looks, because there are a whole bunch of defendants who eventually do get out of jail, but only after
spending a bunch of time looking for the money. In our jurisdiction, the
average time looking is 10 days. That wouldn’t be so bad except for all of that
research out there that says if you keep low and medium risk people in jail for
even short periods of time – like even 24 hours – you actuallyincrease the
risk for failure to appear and the risk to public safety both short and
long-term. The risk goes up the longer they’re in jail. The insurance
company lobbyists ignore that particular problem because it points to a fundamental
flaw in the industry.

This isn’t the end of the
insurance lobbyists’ claims about poor people, however. In fact, the most ridiculous
thing they say about poor people is that if someone is in jail because he or she
can’t afford the money, it’s not because they’re poor. Instead, they say, it’s because
they’re a public safety risk. The logic is twisted, and has something to do
with thinking that if someone doesn’t have family members willing to join the “circle
of love,” as they call it, then that fact suggests that the family thinks the
defendant is dangerous. Crazy, huh? And totally false, as we now have risk
assessment instruments that can actually tell us who is a risk to public safety
and who isn’t.

I keep trying to figure out
why the insurance companies make such ignorant statements, and I think it’s due
to three things: (1) they have a fiduciary duty to make money to the company,
and so they’ll say just about anything to do just that; (2) they have no idea
what they’re talking about because they’ve never been in a jail in their life;
and (3) they just don’t like defendants.

This last point is indicative
of a really big problem in the commercial bail industry. You simply can’t
expect to have clients and at the same time show outward contempt for those
clients. But that’s what I see every day from the insurance companies. Every
time a bail insurance lobbyist says that defendants (un-convicted) should be treated
as criminals (convicted) – such as by decrying the “criminal is the victim
state of mind,” I see the true disdain that the insurance companies have for
their own clients. Expert Bail – the supposed “gold standard” of
professionalism, actually makes fun how defendants look on its Facebook page. It’s
bush-league and infantile, but it points to a much deeper problem.

You’ll lose a lot of people from
your cause by telling them that it’s okay to keep defendants in jail just because
they’ve been arrested, etc., because that’s not what our constitution says. It’s
just not what it means to be an American.

Bail agents, if you really
want people to think about your essential role in the criminal justice system,
don’t listen to the insurance companies, and don’t talk about why it’s okay for defendants to be in jail.
After all, your entire industry was founded on getting bailable defendants out of jail. Talk, instead,
about the things that resonate most with me; you care, apparently more than
even judges, about a defendant’s right to bail, his or her presumption of
innocence, his or her constitutional liberty interest and right to equal
protection of the law. I’ve heard you say it before, and I think you believe
it. If you don’t believe it, though, then I don’t think there’s anything that
can help you.

Tuesday, February 2, 2016

Leave it to a bail insurance
company to get so many basic things about bail utterly wrong. In a recent post
on one of the main bail insurance sites, the company was bemoaning the recent
federal lawsuits against money bail. In doing so, however, it makes a few
fairly incredible misstatements that I can’t let go without comment.

First, the insurance company tries
to justify bail schedules by talking about how fair and “well thought out” they
are. I’ve written extensively about bail schedules, studied bail schedules from
across the country, and attended those meetings with the judges and others who
create them, and the idea of a bail schedule being anything less than arbitrary
and completely irrational is ludicrous. In my jurisdiction, the people who
created the schedule picked money amounts out of a hat – no one could even
remember what numbers started the whole thing off. And when I looked at all the
other schedules here and in other states, I found the same thing. Arbitrary
numbers, which were occasionally raised to account for inflation or perhaps
headlines, with nobody having any idea about where the amounts even came
from.

In fact, to say that the
numbers are arbitrary is an understatement. I’ve seen and written about
jurisdictions that have doubled every amount on their schedule in blanket fashion, and
jurisdictions that halved every amount. Back in the 1920s, bail researcher
Arthur Beeley wrote that the fact that the numbers were round numbers – like
5,000 or 10,000 – hinted at their arbitrariness. And he’s right. In fact, until
you can argue rationally why $5,000 is the proper amount for an assault, when
$4763.47 isn’t (without considering the individual characteristics of a
particular defendant, and beyond questioning the 5,000 for other constitutional flaws), you’re just making both of them up. Fortunately in my
jurisdiction, the judges eliminated the schedule without being sued, and they
did it because the schedule was unfair, irrational, arbitrary, and the
antithesis of the kind of individualized bail setting that had any hope of following
the constitution. Yes, schedules are often created for benevolent purposes –
I’ve written about this, too. But you aren’t paying attention if you haven’t noticed
that they frequently evolve into unwieldly beasts that tend to keep more people
in jail than out. Our old schedule was nearly 40 pages long, and I’ve seen them as
long as 90, but some of the worst just list two numbers – one for all felonies
and one for all misdemeanors. Overall, bail schedules are just another
manifestation of a flawed and likely unconstitutional money-based bail system,
but they have additional issues that make their extinction even more likely.

Second, the insurance company
says that bail “is not about release.” Now I would think an entity making money
from bail would know something about bail, but apparently not here. If you look
deep into the history of bail you will see that the purpose of bail prior to
the Norman Invasion was to avoid blood feuds. With the Normans, however, came
an entirely new criminal justice system along with the building of jails, and from
that moment on the purpose of bail forever shifted to provide a mechanism of
release from those jails. Yes, court appearance was a legitimate purpose for
setting financial conditions of release, but historically – both in England and
America until the 1800s – those financial conditions were virtually always “unsecured”
conditions, which meant that nobody had to pay anything up-front to get out of
jail. In the 1800s, we ran out of personal sureties, flirted with secured cash
conditions, and then ultimately tried the commercial surety business as a way
to get bailable defendants out of jail. It didn’t work, which is why we’re here
today. Bottom line, though, is that since the creation of jails, bail has always been about release. In 1951, the U.S.
Supreme Court equated the right to bail with the “right to release before
trial,” and “the right to freedom before conviction.” Is it any clearer than
that?

By the way, whenever an
insurance company says that “bail is only about court appearance,” it’s showing
its ignorance not only of what bail is and is not (it’s a mechanism of release,
and it’s not money, which is a condition of release), but also of how bail has
evolved to allow for release with conditions to provide reasonable assurance of
both court appearance and public safety. The
bail insurance companies’ complete disregard of safety as a legitimate public
concern is one reason why we’re seeing bail reform to begin with.

Third, the insurance company writes
that the idea that money bail might discriminate against the poor “couldn’t be
further from the truth.” As my dear friend’s delightful middle school daughter
might respond, “OMG!” Doesn’t discriminate against the poor?! Are you nuts? It’s
a money-based system, for goodness sake. Bail agents only help defendants with
money. If defendants have money, they get out. If they don’t have money, they stay
in. Really, this is something a child in grade school would know.

And arguing that the money
bail system doesn’t discriminate against the poor because so many poor people
rely on the bail industry is like saying that separate but equal eating
establishments weren’t discriminatory because all of the people eating in the
“colored” restaurants were African Americans. I’m not trying to shock or offend
by using a racial analogy, but I’m using it on purpose because in the post that
I read, the insurance company not only made that argument – it also had the enormous
audacity to write that money bail “supports racial and socioeconomic equalities.”
That’s monumentally false, and anyone who believes it really has no place in
criminal justice.

Overall, the insurance
company piece provides a trifecta of fundamentally wrong statements about bail,
leading me to conclude that this particuar company might be better suited to discuss something like
health insurance. Or whole life. And, as usual, the way this goes is that once
the insurance company makes wrong statements, people everywhere start
correcting those statements. This not only makes them look bad, it also makes every single bail agent out there look bad, too. I hope it's just ignorance. Heaven help them if they're saying all this just to make money.

About Me

Hello everyone! I'm a criminal justice system analyst with 25 years of legal experience. I was editor-in-chief of the law journal in law school, and I worked as a law clerk to a federal appellate judge right after graduation. I then worked in private practice for several years in Washington DC before I came back to Colorado, where I became interested in criminal justice. I worked for both the state and federal courts of appeals as a staff attorney doing criminal appeals, and I also taught at Washburn Law School for a year before I got involved in the local criminal justice system issues in Jefferson County, Colorado. In that job I quickly realized that there was a lot of room for criminal justice reform, and that's what I've been doing ever since.

For the past several years I've been working on reforming America's traditional system of administering bail. Believe me, it really needs it. I started this blog because I was getting somewhat fed up with all of the slanted misinformation and self-serving research and analyses circulated in the field. This is my little way of chiming in.

I think I've had plenty of formal education, and I hope I'm not forced to get any more (although I'm taking two classes on Coursera!). I have a law degree, a masters of law degree, and a masters of criminal justice degree in addition to the two degrees that I got in college.

I am currently the Executive Director of a Colorado nonprofit called the Center for Legal and Evidence-Based Practices. It serves as my platform for performing neutral and objective research and analysis of topics relating to bail and pretrial justice. I hope that you'll get something out of this blog, which will undoubtedly contain a few things you aren't likely to find anywhere else.